Access to files PA-2023-0130, PA-2023-0137 and PA-2023-0138
Dear Federal Court of Australia,
In 2023, the Federal Court of Australia sought the services of CPM Reviews Pty Ltd in respect of human resources management issues.
"CPM Reviews specialises in conducting workplace investigations" and provides "professional and independent reviews of workplace behaviour, administrative actions and employment decisions for the public sector at all levels of government and for other organisations, including universities and private sector organisations": https://cpmreviews.com.au/index.html
I am interested in three files associated with the services that the Federal Court sought from CPM Reviews. These files contain documents of the Federal Court of Australia in relation to the services that the Federal Court sought from CPM Reviews.
Under the Freedom of Information Act 1982 (Cth), I request access to:
a) any and all documents associated, in the broadest sense of that term, with the file PA-2023-0130; and
b) any and all documents associated, in the broadest sense of that term, with the file PA-2023-0137; and
c) any and all documents associated, in the broadest sense of that term, with the file PA-2023-0138.
Please provide the requested documents by return email.
Yours faithfully,
FOIBLES
OFFICIAL
Dear FOIBLES
I acknowledge receipt of your request dated 14 February 2024 and communicated by email to the Federal Court of Australia (the Court), for access to documents under the Freedom of Information Act 1982 (Cth) (FOI Act).
Based on the Court's preliminary assessment of your FOI request, it has been determined that, at this stage, you are not liable to pay a charge. If that changes, the Court will inform you and will issue you with a notice of charge as required by the FOI Act.
Kind regards
FOI Officer
Federal Court of Australia
-----Original Message-----
From: FOIBLES <[FOI #11098 email]>
Sent: Wednesday, February 14, 2024 9:20 PM
To: External FOI <[email address]>
Subject: Freedom of Information request - Access to files PA-2023-0130, PA-2023-0137 and PA-2023-0138
[You don't often get email from [FOI #11098 email]. Learn why this is important at https://aka.ms/LearnAboutSenderIdentific... ]
Caution: This is an external email. DO NOT click links or open attachments unless you recognise the sender and know the content is safe.
Dear Federal Court of Australia,
In 2023, the Federal Court of Australia sought the services of CPM Reviews Pty Ltd in respect of human resources management issues.
"CPM Reviews specialises in conducting workplace investigations" and provides "professional and independent reviews of workplace behaviour, administrative actions and employment decisions for the public sector at all levels of government and for other organisations, including universities and private sector organisations": https://cpmreviews.com.au/index.html
I am interested in three files associated with the services that the Federal Court sought from CPM Reviews. These files contain documents of the Federal Court of Australia in relation to the services that the Federal Court sought from CPM Reviews.
Under the Freedom of Information Act 1982 (Cth), I request access to:
a) any and all documents associated, in the broadest sense of that term, with the file PA-2023-0130; and
b) any and all documents associated, in the broadest sense of that term, with the file PA-2023-0137; and
c) any and all documents associated, in the broadest sense of that term, with the file PA-2023-0138.
Please provide the requested documents by return email.
Yours faithfully,
FOIBLES
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #11098 email]
Is [Federal Court of Australia request email] the wrong address for Freedom of Information requests to Federal Court of Australia? If so, please contact us using this form:
https://www.righttoknow.org.au/change_re...
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
Please note that in some cases publication of requests and responses will be delayed.
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
OFFICIAL
Dear FOIBLES
I refer to your request to the Federal Court of Australia (Court) under
the Freedom of Information Act 1982 (FOI Act) for access to documents.
The purpose of this email is to advise you that part of your request has
been transferred to the Federal Circuit and Family Court of Australia
(FCFCoA).
The part of your request that will be transferred to the FCFCoA is:
Under the Freedom of Information Act 1982 (Cth), I request access to:
a. any and all documents associated, in the broadest sense of that term,
with the file PA-2023-0130; and
…
Under subsection 16(1) of the FOI Act, the Court, with the agreement of
the FCFCoA, may transfer part of the request to the FCFCoA if the
requested document is not in the possession of the Court but is in the
possession of the FCFCoA or if the subject matter of the document is more
closely connected with the functions of the FCFCiA.
The Court, with agreement, transferred your request as the subject
matter/function is more closely aligned with the FCFCoA.
The Court will continue to process the remaining part of your request
which is currently due on 15 March 2024.
Kind regards
FOI Officer
Federal Court of Australia
OFFICIAL
Dear FOIBLES
Please find attached correspondence from the Federal Court of Australia.
Kind regards
FOI Officer
Federal Court of Australia
-----Original Message-----
From: FOIBLES <[FOI #11098 email]>
Sent: Wednesday, February 14, 2024 9:20 PM
To: External FOI <[email address]>
Subject: Freedom of Information request - Access to files PA-2023-0130, PA-2023-0137 and PA-2023-0138
[You don't often get email from [FOI #11098 email]. Learn why this is important at https://aka.ms/LearnAboutSenderIdentific... ]
Caution: This is an external email. DO NOT click links or open attachments unless you recognise the sender and know the content is safe.
Dear Federal Court of Australia,
In 2023, the Federal Court of Australia sought the services of CPM Reviews Pty Ltd in respect of human resources management issues.
"CPM Reviews specialises in conducting workplace investigations" and provides "professional and independent reviews of workplace behaviour, administrative actions and employment decisions for the public sector at all levels of government and for other organisations, including universities and private sector organisations": https://cpmreviews.com.au/index.html
I am interested in three files associated with the services that the Federal Court sought from CPM Reviews. These files contain documents of the Federal Court of Australia in relation to the services that the Federal Court sought from CPM Reviews.
Under the Freedom of Information Act 1982 (Cth), I request access to:
a) any and all documents associated, in the broadest sense of that term, with the file PA-2023-0130; and
b) any and all documents associated, in the broadest sense of that term, with the file PA-2023-0137; and
c) any and all documents associated, in the broadest sense of that term, with the file PA-2023-0138.
Please provide the requested documents by return email.
Yours faithfully,
FOIBLES
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #11098 email]
Is [Federal Court of Australia request email] the wrong address for Freedom of Information requests to Federal Court of Australia? If so, please contact us using this form:
https://www.righttoknow.org.au/change_re...
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
Please note that in some cases publication of requests and responses will be delayed.
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
OFFICIAL
Dear FOIBLES
Please find attached a response in relation your request under the Freedom
of Information Act.
Kind Regards,
Customer Service
Federal Circuit and Family Court of Australia
I acknowledge the Australian Aboriginal and Torres Strait Islander peoples
as the first inhabitants of the nation and the traditional custodians of
the lands where we live, learn and work.
Dear B Henderson,
Please pass this to the person who conducts Freedom of Information reviews.
I disagree with your conclusion that it is not in the public interest to grant access to any one of the requested documents, and request internal review of your handling of my FOI request 'Access to files PA-2023-0137 and PA-2023-0138'.
Ultimately, the FOI Commissioner may have to decide if the blanket appeal to conditional exemptions and refusal to grant access to documents, supposedly on the ground that disclosure is against the public interest, are justified.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/a...
Yours faithfully,
FOIBLES
Dear Federal Court of Australia,
Internal review request submitted - https://www.righttoknow.org.au/request/a...
Yours faithfully,
FOIBLES
OFFICIAL
Dear FOIBLES
I acknowledge receipt of your request dated 15 March 2024 and communicated by email to the Federal Court of Australia for an internal review of the FOI decision dated 15 March 2024.
Kind regards
FOI Officer
Federal Court of Australia
-----Original Message-----
From: FOIBLES <[FOI #11098 email]>
Sent: Friday, March 15, 2024 8:04 PM
To: External FOI <[email address]>
Subject: Internal review of Freedom of Information request - Access to files PA-2023-0130, PA-2023-0137 and PA-2023-0138
Caution: This is an external email. DO NOT click links or open attachments unless you recognise the sender and know the content is safe.
Dear B Henderson,
Please pass this to the person who conducts Freedom of Information reviews.
I disagree with your conclusion that it is not in the public interest to grant access to any one of the requested documents, and request internal review of your handling of my FOI request 'Access to files PA-2023-0137 and PA-2023-0138'.
Ultimately, the FOI Commissioner may have to decide if the blanket appeal to conditional exemptions and refusal to grant access to documents, supposedly on the ground that disclosure is against the public interest, are justified.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/a...
Yours faithfully,
FOIBLES
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #11098 email]
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
Please note that in some cases publication of requests and responses will be delayed.
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
Dear FOIBLES
Please find attached correspondence from the Federal Court of Australia.
Kind regards
FOI Officer
Federal Court of Australia
-----Original Message-----
From: FOIBLES <[FOI #11098 email]>
Sent: Friday, March 15, 2024 8:04 PM
To: External FOI <[email address]>
Subject: Internal review of Freedom of Information request - Access to files PA-2023-0130, PA-2023-0137 and PA-2023-0138
Caution: This is an external email. DO NOT click links or open attachments unless you recognise the sender and know the content is safe.
Dear B Henderson,
Please pass this to the person who conducts Freedom of Information reviews.
I disagree with your conclusion that it is not in the public interest to grant access to any one of the requested documents, and request internal review of your handling of my FOI request 'Access to files PA-2023-0137 and PA-2023-0138'.
Ultimately, the FOI Commissioner may have to decide if the blanket appeal to conditional exemptions and refusal to grant access to documents, supposedly on the ground that disclosure is against the public interest, are justified.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/a...
Yours faithfully,
FOIBLES
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #11098 email]
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
Please note that in some cases publication of requests and responses will be delayed.
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
[1]Office of the Australian Information Reference Code:
Commissioner ICR_10-56751472-4716
You submitted a form called: FOI Review_
Your form reference code is: ICR_10-56751472-4716
To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
details are displayed below.
Office of the Australian Information Commissioner
[2]http://www.oaic.gov.au | [3]1300 363 992 | [4][email address]
GPO Box 5218, Sydney NSW 2001
Note: Please do not reply to this auto-generated email.
References
Visible links
2. http://www.oaic.gov.au/
3. file:///tmp/tel:1300 363 992
4. mailto:[email address]
Our reference: MR24/00737
By email: [FOI #11098 email]
Receipt of your IC review application
Thank you for your application for Information Commissioner Review (IC
review).
The Office of the Australian Information Commissioner (OAIC) is
considering your application.
If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [email address] and quote MR24/00737.
Yours sincerely
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
Our reference: MR24/00737
FOI Contact Officer
Federal Court of Australia
By email: [1][Federal Court of Australia request email]
FOIBLES .
By email: [2][FOI #11098 email]
IC Review - Notice of commencement
Dear parties,
Please find attached the notice of commencement for the above referenced
IC review.
Annexure A and B of the attached Notice of IC Review provide information
about the obligations of applicants and respondents during the IC
review.
Kind regards,
[3][IMG] Sarveshcika Yuvaraj (she/her)
Paralegal | FOI Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [4][email address]
Please note: The OAIC will be revising its IC review procedures commencing
1 July 2024. For more information about these revised procedures,
including new resources to assist applicants and respondents, see our
webpage: [5]Upcoming changes to Information Commissioner review procedure
directions
The OAIC acknowledges Traditional Custodians of Country across
Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people,
cultures and Elders past and present.
[6]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. mailto:[Federal Court of Australia request email]
2. mailto:[FOI #11098 email]
3. https://www.oaic.gov.au/
4. mailto:[email address]
5. https://www.oaic.gov.au/freedom-of-infor...
6. https://www.oaic.gov.au/engage-with-us/n...
OFFICIAL
Dear FOIBLES
We refer to your Information Commissioner Review Application Form,
reference code GNPKTZH6 (form).
Pursuant to paragraph 3.9 of the [1]Direction as to certain procedures to
be followed by agencies and ministers in Information Commissioner reviews,
we seek to arrange a telephone or video conference with you to discuss
your Information Commissioner review and attempt to resolve and/or narrow
the issues you have outlined in your form.
As the submission is due by 4 September 2024, we propose the conference
take place on either 26 or 27 August 2024 during business hours.
Please advise by return email, and no later than Friday 23 August 2024,
your best contact details so that we can make the necessary arrangements.
Kind regards
FOI Officer
Federal Court of Australia
References
Visible links
1. https://www.oaic.gov.au/freedom-of-infor...
Dear External FOI,
I am somewhat concerned that it has taken somebody at the Federal Court almost a month since Ms Yuvaraj contacted us to establish contact with me to resolve or narrow the issues in dispute.
Like you, I work during business hours so it is impractical for me to engage in a telephone or video conference. I am best able to communicate during my personal time, which is late at night, after work, or on weekends.
Pursuant to paragraph 3.10 of the Directions as to certain procedures to be followed by agencies and ministers in IC reviews, i am notifying you that my preferred mode of communication is email (via this website).
I look forward to receiving your proposals on resolving the issues in dispute (or at least narrowing them down).
To get the ball rolling, I think that the best way to re-establish goodwill is for the Federal Court to grant access to those classes of documents that it realistically will not be able to maintain exemptions over. For example, it is most improbable that the Federal Court will be able to convince the OAIC that invoices issued by the investigator/s, and payments made in response to those invoices, are exempt on the basis of the conditional exemption grounds.
Yours sincerely,
FOIBLES
OFFICIAL
Dear FOIBLES
The Court notes that your preferred mode of communication is email via the Right to Know website.
To assist in resolving or narrowing down the issues in dispute, the Court would be grateful if you could indicate whether there any specific categories of documents that you are seeking access to from the files PA-2023-0137 and PA-2023-0138, and whether there are any categories of documents or information you do not seek access to.
We look forward to hearing from you at your earliest convenience.
Kind regards
FOI Officer
Federal Court of Australia
-----Original Message-----
From: FOIBLES <[FOI #11098 email]>
Sent: Thursday, August 22, 2024 9:03 PM
To: External FOI <[email address]>
Subject: Re: Correspondence from the Federal Court of Australia [SEC=OFFICIAL]
Caution: This is an external email. DO NOT click links or open attachments unless you recognise the sender and know the content is safe.
Dear External FOI,
I am somewhat concerned that it has taken somebody at the Federal Court almost a month since Ms Yuvaraj contacted us to establish contact with me to resolve or narrow the issues in dispute.
Like you, I work during business hours so it is impractical for me to engage in a telephone or video conference. I am best able to communicate during my personal time, which is late at night, after work, or on weekends.
Pursuant to paragraph 3.10 of the Directions as to certain procedures to be followed by agencies and ministers in IC reviews, i am notifying you that my preferred mode of communication is email (via this website).
I look forward to receiving your proposals on resolving the issues in dispute (or at least narrowing them down).
To get the ball rolling, I think that the best way to re-establish goodwill is for the Federal Court to grant access to those classes of documents that it realistically will not be able to maintain exemptions over. For example, it is most improbable that the Federal Court will be able to convince the OAIC that invoices issued by the investigator/s, and payments made in response to those invoices, are exempt on the basis of the conditional exemption grounds.
Yours sincerely,
FOIBLES
-----Original Message-----
OFFICIAL
Dear FOIBLES
We refer to your Information Commissioner Review Application Form,
reference code GNPKTZH6 (form).
Pursuant to paragraph 3.9 of the [1]Direction as to certain procedures to
be followed by agencies and ministers in Information Commissioner reviews,
we seek to arrange a telephone or video conference with you to discuss
your Information Commissioner review and attempt to resolve and/or narrow
the issues you have outlined in your form.
As the submission is due by 4 September 2024, we propose the conference
take place on either 26 or 27 August 2024 during business hours.
Please advise by return email, and no later than Friday 23 August 2024,
your best contact details so that we can make the necessary arrangements.
Kind regards
FOI Officer
Federal Court of Australia
References
Visible links
1. https://www.oaic.gov.au/freedom-of-infor...
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #11098 email]
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
Please note that in some cases publication of requests and responses will be delayed.
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
Dear External FOI,
I am prepared to remove the draft and preliminary investigation reports from the scope of my request. I am also prepared to remove the voice recording referred to in B Henderson's decision. Everything else remains in scope at this stage.
I may consider further limiting the scope of the materials but that is likely to depend on the way this consultation progresses and whether the blanket refusal adopted by R Muscat is reconsidered. As I have noted in my IC review application, the blanket refusal, which has been applied without providing adequate reasons, strikes me as unjustifiable.
Yours sincerely,
FOIBLES
OFFICIAL
Dear FOIBLES
Thank you for confirming that you no longer seek access to the draft and preliminary investigation reports, or the voice recordings, and therefore that those documents are no longer at issue in the present Information Commissioner review.
The Court is in the process of drafting its submissions to the Information Commissioner and may be in touch with you again to assist further resolve or narrow down the issues in dispute.
Kind regards
FOI Officer
Federal Court of Australia
-----Original Message-----
From: FOIBLES <[FOI #11098 email]>
Sent: Friday, August 23, 2024 6:47 PM
To: External FOI <[email address]>
Subject: RE: Correspondence from the Federal Court of Australia [SEC=OFFICIAL]
Caution: This is an external email. DO NOT click links or open attachments unless you recognise the sender and know the content is safe.
Dear External FOI,
I am prepared to remove the draft and preliminary investigation reports from the scope of my request. I am also prepared to remove the voice recording referred to in B Henderson's decision. Everything else remains in scope at this stage.
I may consider further limiting the scope of the materials but that is likely to depend on the way this consultation progresses and whether the blanket refusal adopted by R Muscat is reconsidered. As I have noted in my IC review application, the blanket refusal, which has been applied without providing adequate reasons, strikes me as unjustifiable.
Yours sincerely,
FOIBLES
-----Original Message-----
OFFICIAL
Dear FOIBLES
The Court notes that your preferred mode of communication is email via the Right to Know website.
To assist in resolving or narrowing down the issues in dispute, the Court would be grateful if you could indicate whether there any specific categories of documents that you are seeking access to from the files PA-2023-0137 and PA-2023-0138, and whether there are any categories of documents or information you do not seek access to.
We look forward to hearing from you at your earliest convenience.
Kind regards
FOI Officer
Federal Court of Australia
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #11098 email]
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
Please note that in some cases publication of requests and responses will be delayed.
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
OFFICIAL
Dear FOIBLES
Further to our emails below, the Court has decided to grant you access in full to the one (1) document attached.
The Court considers this document is no longer at issue in the present Information Commissioner review.
Kind regards
FOI Officer
Federal Court of Australia
-----Original Message-----
From: External FOI
Sent: Monday, August 26, 2024 11:33 AM
To: FOIBLES <[FOI #11098 email]>
Subject: RE: Correspondence from the Federal Court of Australia [SEC=OFFICIAL]
OFFICIAL
Dear FOIBLES
Thank you for confirming that you no longer seek access to the draft and preliminary investigation reports, or the voice recordings, and therefore that those documents are no longer at issue in the present Information Commissioner review.
The Court is in the process of drafting its submissions to the Information Commissioner and may be in touch with you again to assist further resolve or narrow down the issues in dispute.
Kind regards
FOI Officer
Federal Court of Australia
-----Original Message-----
From: FOIBLES <[FOI #11098 email]>
Sent: Friday, August 23, 2024 6:47 PM
To: External FOI <[email address]>
Subject: RE: Correspondence from the Federal Court of Australia [SEC=OFFICIAL]
Caution: This is an external email. DO NOT click links or open attachments unless you recognise the sender and know the content is safe.
Dear External FOI,
I am prepared to remove the draft and preliminary investigation reports from the scope of my request. I am also prepared to remove the voice recording referred to in B Henderson's decision. Everything else remains in scope at this stage.
I may consider further limiting the scope of the materials but that is likely to depend on the way this consultation progresses and whether the blanket refusal adopted by R Muscat is reconsidered. As I have noted in my IC review application, the blanket refusal, which has been applied without providing adequate reasons, strikes me as unjustifiable.
Yours sincerely,
FOIBLES
-----Original Message-----
OFFICIAL
Dear FOIBLES
The Court notes that your preferred mode of communication is email via the Right to Know website.
To assist in resolving or narrowing down the issues in dispute, the Court would be grateful if you could indicate whether there any specific categories of documents that you are seeking access to from the files PA-2023-0137 and PA-2023-0138, and whether there are any categories of documents or information you do not seek access to.
We look forward to hearing from you at your earliest convenience.
Kind regards
FOI Officer
Federal Court of Australia
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #11098 email]
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
Please note that in some cases publication of requests and responses will be delayed.
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
OFFICIAL
Dear Ms Yuvaraj and FOIBLES
Please find attached the submission of the Federal Court of Australia
(Court) in relation to the MR24/00737 Information Commissioner review.
The Court refers the applicant to the requirement in the [1]Direction as
to certain procedures to be followed by applicants in Information
Commissioner reviews to make any submissions within ten (10) business days
from the date of receiving this correspondence. The Information
Commissioner review may proceed to a final decision without any further
opportunity to make submissions (see paragraphs 2.27 and 2.28).
Please do not hesitate to contact us if we can assist any further.
Kind regards
FOI Officer
Federal Court of Australia
From: OAIC - FOI DR <[email address]>
Sent: Wednesday, July 24, 2024 1:50 PM
To: External FOI <[email address]>;
[FOI #11098 email]
Subject: OAIC – MR24/00737 - Notice of IC Review [SEC=OFFICIAL]
Caution: This is an external email. DO NOT click links or open attachments
unless you recognise the sender and know the content is safe.
Our reference: MR24/00737
FOI Contact Officer
Federal Court of Australia
By email: [2][Federal Court of Australia request email]
FOIBLES .
By email: [3][FOI #11098 email]
IC Review - Notice of commencement
Dear parties,
Please find attached the notice of commencement for the above referenced
IC review.
Annexure A and B of the attached Notice of IC Review provide information
about the obligations of applicants and respondents during the IC
review.
Kind regards,
[4][IMG] Sarveshcika Yuvaraj (she/her)
Paralegal | FOI Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [5][email address]
Please note: The OAIC will be revising its IC review procedures commencing
1 July 2024. For more information about these revised procedures,
including new resources to assist applicants and respondents, see our
webpage: [6]Upcoming changes to Information Commissioner review procedure
directions
The OAIC acknowledges Traditional Custodians of Country across
Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people,
cultures and Elders past and present.
[7]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. https://www.oaic.gov.au/freedom-of-infor...
2. mailto:[Federal Court of Australia request email]
3. mailto:[FOI #11098 email]
4. https://www.oaic.gov.au/
5. mailto:[email address]
6. https://www.oaic.gov.au/freedom-of-infor...
7. https://www.oaic.gov.au/engage-with-us/n...
MR24/00737
ATTN: FOIDR
To whom it may concern,
I received Mr Rohan Muscat’s submissions in relation to MR24/00737 on 4 September 2024. They are needlessly lengthy. I do not intend to detain the readers of these submissions with prolixity.
Consultation process
Ms Yuvaraj sent a notice to the Court and me on 24 July 2024 in which she requested that the Court consult with me to narrow the scope of issues. The Court first contacted me on 20 August 2024, almost a month after receiving Ms Yuvaraj’s notice (https://www.righttoknow.org.au/request/a...). There was not much by way of consultation on the part of the Court.
Issues
My application for IC review arises from the fact that I am sceptical that every single document in scope (248 documents originally) is exempted from release. That scepticism is justified.
At paragraphs 68 – 69 of his submissions (https://www.righttoknow.org.au/request/1...), Mr Muscat states:
“The only contention made by the applicant in the present IC review is that at least some
of the information in the documents at issue should be released. The applicant provides
no material in support of this contention. The applicant appears to make this contention on the assumption that the quantity of documents found from the searches conducted
means that something should be provided to them, stating:
I find it hard to believe that there are 248 documents within scope (see original decision of B
Henderson) and not a single document has been released because conditional exemptions apply to
each and every document and all aspects of the documents in scope.
The Court rejects the applicant’s contentions in full. The Court seeks to rely upon the
reasons given in its original FOI decision dated 15 March 2024 (Attachment 4) and
internal review decision dated 15 April 2024 (Attachment 7) in addition to making the
following submissions.”
My scepticism is not informed by the number of documents in scope. That is a misrepresentation. Mr Muscat appears to have given no regard to what I noted during the consultation process. On 22 August 2024 (https://www.righttoknow.org.au/request/a...), I noted:
“For example, it is most improbable that the Federal Court will be able to convince the OAIC that invoices issued by the investigator/s, and payments made in response to those invoices, are exempt on the basis of the conditional exemption grounds.”
Clearly, what PARTLY informs my scepticism is the nature of the documents in issue, but that has been conveniently ignored by Mr Muscat.
Mr Muscat is also under a misapprehension about the legal requirements associated with an IC review, particularly on the issue of onus of proof.
Subsection 55D(1) of the FOI Act provides that “in an IC review in relation to a request or an application under section 48, the agency or Minister concerned has the onus of establishing that:
(a) a decision given in respect of the request or application is justified; or
(b) the Information Commissioner should give a decision adverse to the IC review applicant.”
I am entitled to apply for IC review. I have a right to access documents, subject to the law. I have no onus of proving my case for access to documents. Rohan Muscat’s submissions suggesting that I should “provide materials in support of this contention” is contradicted by the law. The onus to justify the internal review decision rests squarely and exclusively with the Court. Mr Muscat’s submissions in that regard should be dismissed as misconceived.
The Federal Court has the onus of establishing that Rohan Muscat’s internal review decision of 15 April 2024 is justified, and the internal review decision is clearly not justified.
On 30 August 2024 (https://www.righttoknow.org.au/request/a...), an unnamed FOI officer wrote to me and released a document to me in full. The document was one of the documents within scope (https://www.righttoknow.org.au/request/1...).
If Rohan Muscat’s internal review decision of 15 April 2024 was correct, then the document released on 30 August 2024 would not have been released. That released document would be exempt in full instead of being released in full. Thus, I am justified in my scepticism.
The language in Rohan Muscat’s submission is an uncompromising as the language in his internal review decision of 15 April 2024.
How should I know if the submissions are correct? Austlii is replete with decisions made by the Information Commissioner or the FOI Commissioner in which one or other commissioner has found that, notwithstanding the unyielding claims of FOI officers in Commonwealth agencies, documents withheld by an agency should be released. What’s to say that there are no other documents that, upon an objective assessment, would not be released under the FOI Act? As I noted on 22 August 2024, there are classes of documents that are just so unlikely to be exempt in full that, upon assessment according to law, they will, either partly or in full, be released under the FOI Act.
At root, this all boils down to trust. For the reasons outlined, I was justified in receiving Mr Muscat’s internal review reasons with scepticism, and am justified in my scepticism of his submissions. I do not know what will be released under the FOI Act because I do not have access to the materials I am requesting, but I am quite certain, in the light of decisions that have been made in the past by FOI and Information Commissioner, as well as some of the classes of documents within scope, that there will be other documents released if and when the documents in scope are reassessed by an arms-length decision maker.
Finally, I note that, for all its length, Rohan Muscat's submissions do not adequately address how and why the claimed conditional exemptions apply to the documents requested. Rather, Mr Muscat's submissions on the matter are vague, lacking in particularity and merely address types/classes of documents in passing (with most of the submissions merely rehearsing authorities). Rehearsing authorities without adequately addressing how those authorities apply to the instant documents is unhelpful and frustrating.
Yours sincerely,
FOIBLES
Dear Mr Muscat,
Please find my submissions set out here: https://www.righttoknow.org.au/request/a...
I have also reproduced them below for your convenience.
______________________________________________________________
MR24/00737
I received Mr Rohan Muscat’s submissions in relation to MR24/00737 on 4 September 2024. They are needlessly lengthy. I do not intend to detain the readers of these submissions with prolixity.
Consultation process
Ms Yuvaraj sent a notice to the Court and me on 24 July 2024 in which she requested that the Court consult with me to narrow the scope of issues. The Court first contacted me on 20 August 2024, almost a month after receiving Ms Yuvaraj’s notice (https://www.righttoknow.org.au/request/a...). There was not much by way of consultation on the part of the Court.
Issues
My application for IC review arises from the fact that I am sceptical that every single document in scope (248 documents originally) is exempted from release. That scepticism is justified.
At paragraphs 68 – 69 of his submissions (https://www.righttoknow.org.au/request/1...), Mr Muscat states:
“The only contention made by the applicant in the present IC review is that at least some
of the information in the documents at issue should be released. The applicant provides
no material in support of this contention. The applicant appears to make this contention on the assumption that the quantity of documents found from the searches conducted
means that something should be provided to them, stating:
I find it hard to believe that there are 248 documents within scope (see original decision of B
Henderson) and not a single document has been released because conditional exemptions apply to
each and every document and all aspects of the documents in scope.
The Court rejects the applicant’s contentions in full. The Court seeks to rely upon the
reasons given in its original FOI decision dated 15 March 2024 (Attachment 4) and
internal review decision dated 15 April 2024 (Attachment 7) in addition to making the
following submissions.”
My scepticism is not informed by the number of documents in scope. That is a misrepresentation. Mr Muscat appears to have given no regard to what I noted during the consultation process. On 22 August 2024 (https://www.righttoknow.org.au/request/a...), I noted:
“For example, it is most improbable that the Federal Court will be able to convince the OAIC that invoices issued by the investigator/s, and payments made in response to those invoices, are exempt on the basis of the conditional exemption grounds.”
Clearly, what PARTLY informs my scepticism is the nature of the documents in issue, but that has been conveniently ignored by Mr Muscat.
Mr Muscat is also under a misapprehension about the legal requirements associated with an IC review, particularly on the issue of onus of proof.
Subsection 55D(1) of the FOI Act provides that “in an IC review in relation to a request or an application under section 48, the agency or Minister concerned has the onus of establishing that:
(a) a decision given in respect of the request or application is justified; or
(b) the Information Commissioner should give a decision adverse to the IC review applicant.”
I am entitled to apply for IC review. I have a right to access documents, subject to the law. I have no onus of proving my case for access to documents. Rohan Muscat’s submissions suggesting that I should “provide materials in support of this contention” is contradicted by the law. The onus to justify the internal review decision rests squarely and exclusively with the Court. Mr Muscat’s submissions in that regard should be dismissed as misconceived.
The Federal Court has the onus of establishing that Rohan Muscat’s internal review decision of 15 April 2024 is justified, and the internal review decision is clearly not justified.
On 30 August 2024 (https://www.righttoknow.org.au/request/a...), an unnamed FOI officer wrote to me and released a document to me in full. The document was one of the documents within scope (https://www.righttoknow.org.au/request/1...).
If Rohan Muscat’s internal review decision of 15 April 2024 was correct, then the document released on 30 August 2024 would not have been released. That released document would be exempt in full instead of being released in full. Thus, I am justified in my scepticism.
The language in Rohan Muscat’s submission is an uncompromising as the language in his internal review decision of 15 April 2024.
How should I know if the submissions are correct? Austlii is replete with decisions made by the Information Commissioner or the FOI Commissioner in which one or other commissioner has found that, notwithstanding the unyielding claims of FOI officers in Commonwealth agencies, documents withheld by an agency should be released. What’s to say that there are no other documents that, upon an objective assessment, would not be released under the FOI Act? As I noted on 22 August 2024, there are classes of documents that are just so unlikely to be exempt in full that, upon assessment according to law, they will, either partly or in full, be released under the FOI Act.
At root, this all boils down to trust. For the reasons outlined, I was justified in receiving Mr Muscat’s internal review reasons with scepticism, and am justified in my scepticism of his submissions. I do not know what will be released under the FOI Act because I do not have access to the materials I am requesting, but I am quite certain, in the light of decisions that have been made in the past by FOI and Information Commissioner, as well as some of the classes of documents within scope, that there will be other documents released if and when the documents in scope are reassessed by an arms-length decision maker.
Finally, I note that, for all its length, Rohan Muscat's submissions do not adequately address how and why the claimed conditional exemptions apply to the documents requested. Rather, Mr Muscat's submissions on the matter are vague, lacking in particularity and merely address types/classes of documents in passing (with most of the submissions merely rehearsing authorities). Rehearsing authorities without adequately addressing how those authorities apply to the instant documents is unhelpful and frustrating.
Yours sincerely,
FOIBLES